¶23
Becker, J.(dissenting) — The history of the Twin Bridge Marine Park (Twin Bridge) project establishes that it was subject to the Department of Ecology’s (Ecology) authority over shoreline conditional use permits. Accordingly, I respectfully dissent from the majority’s conclusion that the outcome of this case is controlled by Samuel’s Furniture, Inc. v. Department of Ecology, 147 Wn.2d 440, 54 P.3d 1194 (2002).
¶24 Twin Bridge obtained two substantial development/ conditional use permits from Skagit County (County) in the 1980’s. The permits, #7-82 and #15-86, authorized use of the site for placement of landfill, operation of a marine construction and dredging business, and creation of a boat basin in which to moor the construction and dredging equipment.
f25 Ecology has direct authority over shoreline conditional use permits. “Any permit for a variance or a conditional use by local government under approved master programs must be submitted to the department for its approval or disapproval.” RCW 90.58.140(10). Ecology may attach special conditions to a conditional use permit “to prevent undesirable effects of the proposed use and/or to assure consistency of the project with the act and the local master program.” WAC 173-27-160. Ecology may penalize violations of these permits “jointly with local government,” or alone. WAC 173-27-280(1).
*745¶26 After reviewing each of the two permits, Ecology approved of them as meeting the intent of the master program and the criteria set forth in the Washington Administrative Code for granting a conditional use.8 Ecol-ogy repeatedly emphasized that approval was for the designated uses only. For instance, Ecology informed Twin Bridge:
It is our understanding that this permit only authorizes 90,000 cubic yards of fill to be placed on site and subsequent use of the site for the operation of a marine construction and dredging business to include storage of materials and equipment. Any other substantial development on the site such as buildings, shore structures, hard surfacing, and drainage improvements will be submitted as a new permit or a revision to this permit.[9]
¶27 Twin Bridge carried out the site development authorized by these conditional use permits, although delay was occasioned by litigation with the State Department of Fish and Wildlife (Fish and Wildlife) over the necessary hydraulic permit. In 1998 Ecology approved a revision to permit #15-86 to authorize a redesign of the moorage basin agreed to by Fish and Wildlife, subject to three additional conditions. Condition 3 of Ecology’s approval was that “All uses and activities not specifically authorized in Permits #SHL 7-82 and 15-86 are prohibited.”10
¶28 Twin Bridge began to plan further development of the site as a backshore marina. The main structure was to be outside the shoreline jurisdiction, that is to say more than 200 feet from the shore. See RCW 90.58.030(2)(f). But within the shoreline jurisdiction there would be appurtenant structures, hard surfacing, and drainage improvements. Twin Bridge applied to the County in 1999 for *746building permits. The County issued two building permits on March 7, 2000.11
¶29 Twin Bridge began construction. Ecology issued a Notice of Correction on May 1, 2000, advising that the new use and structures exceeded the scope of the conditional use permits as approved by Ecology.12 Twin Bridge wrote to Ecology on May 22, 2000, urging that the new construction should be seen as complying with permits #7-82 and #15-86. The letter asserts that the current construction activities within the shorelines were “controlled by” and implicitly authorized by the existing conditional use permits.13 Ecology, adhering to its position that the new development was not “within the scope or intent” of the original conditional use permits, issued a stop-work order on June 21, 2000.14
f 30 On the same day, the Skagit County Hearing Examiner decided — apparently in response to an appeal of the building permits brought by the city of Anacortes — that a new shoreline substantial development/conditional use permit was required for the proposed development. Enforcing the Hearing Examiner’s decision, the County issued its own stop-work order, along with a notice of suspension of the building permits, on June 27, 2000.15 Twin Bridge stopped work, and submitted an application on July 1, 2000, for a new substantial development/conditional use permit “under protest” of Ecology’s stop-work order.16
¶31 Also, Twin Bridge apparently appealed the Hearing Examiner’s decision to the county commissioners. On February 9, 2001, unknown to Ecology (Ecology had not been a participant in the Anacortes appeal of the building permits), Twin Bridge resolved its appeal by signing a settlement agreement with Anacortes and the County. The settle*747ment agreement and other materials relating to the Anacortes appeal are not in our record, but Ecology acknowledges that the settlement vacated the hearing examiner’s decision that a new shoreline permit was required.17 On February 12, 2001, citing the authority of the settlement agreement, the County lifted its notice of suspension of the building permits and authorized work to begin in compliance with the building permits.18
¶32 Meanwhile, Twin Bridge was in the process of obtaining Ecology’s agreement to withdraw the penalty on condition that Twin Bridge would “continue to pursue in good faith” its application for a new substantial development permit and not resume work until “all required” permits had been obtained.19 A stipulation to this effect, and an agreed order of dismissal of the Twin Bridge’s appeal of the penalty order to the Shoreline Hearings Board, was approved by the Board on February 16, 2001. Notwithstanding this agreement, Twin Bridge immediately resumed work on the project — thus provoking further penalty orders from Ecology and giving rise to the present dispute.
¶33 The majority concludes that Twin Bridge’s resumption of work did not justify enforcement action by Ecology because the County’s reinstatement of the building permits implicitly decided that further shoreline permits were not required, and Ecology must now accept that implicit decision as correct because Ecology failed to challenge it in a timely manner under the Land Use Petition Act, chapter 36.70C RCW.20 The majority finds this result compelled by Samuel’s Furniture, Inc. v. Department of Ecology, 147 Wn.2d 440, 54 P.3d 1194 (2002). The majority reasons that Twin Bridge, like the developer in Samuel’s Furniture, was entitled to act in good faith on the building permits issued *748by the local government, without concern that Ecology would later impose penalties.
¶34 But Twin Bridge is not like the developer in Samuel’s Furniture. Unlike that developer, Twin Bridge was subject to conditional use permits previously approved by Ecology for activity on the site. As shown by its letter of May 22, 2000, Twin Bridge took the position that the expansion of the project from a moorage basin and dredging business into a backshore marina was within the scope of those conditional use permits.21 Ecology consistently maintained the opposite — that the scope of the permits was limited to the uses and activities they specifically designated. By reinstating the building permits, the County implicitly sided with Twin Bridge and decided that the new activities were within the scope of the old permits. The issue presented now is whether that decision was exclusively the County’s to make or whether the Shoreline Management Act of 1971, chapter 90.58 RCW, authorizes Ecology to enforce its own interpretation of the conditional use permits, even if it differs from the County’s.
¶35 The Shoreline Management Act does not give Ecology the right to directly review a local government’s decision regarding a substantial development permit. Samuel’s Furniture, 147 Wn.2d at 455. However, as the court noted in Samuel’s Furniture, the act does give Ecology the responsibility of reviewing conditional use permits for approval. RCW 90.58.140(10); see Samuel’s Furniture, 147 Wn.2d at 455 n.13. This distinction is key. A shoreline conditional use permit issued by a local government is not valid except as approved by Ecology. In deciding to approve the original conditional use permits, Ecology clearly stated that the approval was subject to the understanding that the permits did not authorize uses and activities on the site not specifically designated in the permits. If Twin Bridge was dissatisfied with Ecology’s limitations on the scope of the permits, Twin Bridge should have said so at the time or used the *749appeal process in the Shoreline Management Act to challenge them. Because Twin Bridge accepted Ecology’s limitations without challenge, development of the property was subject to the limited scope of conditional use permits as Ecology consistently interpreted them.
¶36 I would hold that Ecology has authority to enforce the conditional use permits according to its own interpretation of their scope. As the majority concludes, the Shoreline Hearings Board was in error to conclude that Ecology could penalize Twin Bridge for proceeding without a required substantial development permit; the County had exclusive authority to decide whether such a permit was required and its decision will stand because Ecology did not appeal it.22 However, we may affirm on any ground sufficiently developed before the Board. I would affirm on the basis that Ecology could penalize Twin Bridge for expanding its existing business as if the new uses and structures were authorized by the existing conditional use permit, when Ecology — using its independent authority — had decided they were not. Samuel’s Furniture does not deprive Ecology of that authority.
¶37 It is an unwarranted extension of Samuel’s Furniture to require Ecology to first challenge the County’s issuance of the building permits in superior court as if only a local land use decision were involved. The Shoreline Management Act, referred to and approved by a vote of the people, is intended to “prevent the inherent harm in an uncoordinated and piecemeal development of the state’s shorelines.” RCW 90.58.020. Ecology’s independent authority to penalize violations of conditional use permits is a significant part of the enforcement mechanism set forth in the act, and nothing in Samuel’s Furniture allows it to be undermined. The Shoreline Hearings Board’s decision to affirm the penalties issued by Ecology should be affirmed.
Ex. R-4, R-9 (Department’s Exhibits from Shoreline Hearing Board proceedings).
Ex. R-4.
Ex. R-23.
Ex. R-41.
Ex. R-46.
Ex. R-47.
Ex. R-50 (Allegation of Law 20).
Ex. R-52.
Ex. R-53.
Br. of Appellant at 10 n.6.
Ex. A-2.
Ex. R-80.
Majority at 743.
Ex. R-47.
Majority at 743-44.